Cite as U.S. v. Goodson, 439 F.2d 1056 (5th Cir. 1971)
UNITED STATES of America, Plaintiff-Appellee,
v.
Leon GOODSON, Defendant-Appellant.
No. 28873.
United States Court of Appeals, Fifth Circuit.
March 18, 1971.
Gerald P. Urbach, Dallas, Tex., Geary, Brice, Barron & Stahl,
Dallas, Tex., for appellant.
Eldon B. Mahon, U. S. Atty., Andrew Barr, Asst. U. S. Atty.,
James F. Gaulding, Dallas, Tex., Asst. Regional Counsel, Int.
Rev. Service, for appellee.
Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.
INGRAHAM, Circuit Judge:
Appellant Goodson was convicted upon a jury verdict of guilty of
violation of the National Firearms Act, 26 U.S.C. section 5801, et
seq. The offense charged arose from the possession of a firearm
("sawed-off" shotgun), as defined by 26 U. S. C. section 5848,
alleged to have been made in violation of 26 U.S.C. section 5821,
such possession being violative of section 5851 of the Act.
[footnote 1]
In appealing his conviction, Goodson has raised five points of
error-(1) insufficiency of the evidence to support the conviction;
(2) error by the trial court in instructing the jury; (3) admission
into evidence of two shotgun shells seized in contravention of
Goodson's Fourth Amendment rights; (4) violation of appellant's
Fifth Amendment right against compulsory self-incrimination; and
(5) the punishment imposed was cruel and unusual in violation of
the Eighth Amendment to the United States Constitution.
Because we have concluded on the facts of this case that
appellant's first point of error requires reversal of his
conviction we pretermit discussion of the remaining points of error
assigned on this appeal.
Upon appellant's trial in the court below, the government
introduced through accomplice witness testimony evidence of the
defendant's possession of the weapon at the time and place alleged
in the indictment and that the weapon was a "firearm" as that term
is defined in section 5848(1) of the Act, note 1, supra. The
government introduced into evidence as well a report from the
custodian of the National Firearms Registration and Transfer
Record, which indicated that no person had registered possession of
the described weapon [20 gauge Winchester-Western (Canada)
shotgun], nor had any person acquired the firearm by importation,
transfer or making, nor had anyone paid a transfer or making tax
with respect to the transfer or making of the subject firearm. It
was upon this evidentiary base that the government's case was
submitted to the jury which returned a verdict of guilty.
Although challenging the sufficiency of the evidence on the
issue of possession, the primary thrust of appellant's argument
focuses upon the government's failure to prove that the firearm in
question was made [manufactured, put together or altered] "in the
United States"-a condition prerequisite to liability for payment of
the making tax and filing of the declaration of intent to make,
section 5821, note 1, supra, and, a fortiori, a violation of
section 5851 under the indictment as laid.
While the government candidly admits that there was no proof
that the firearm in question was made "in the United States", it
contends that proof of that fact is not required to secure a
conviction under section 5851, or, alternatively, that the
evidentiary presumption contained in section 5851 operates to cast
upon the defendant the burden of proving that the firearm was not
made "in the United States." The reasoning of the government is
predicated upon the fact that the shotgun was originally manufac-
tured in Canada and, so the government's theory goes, the possible
"made in Canada" is an affirmative defense which the government is
not required to negate. We find the government's contention on
both points to be untenable.
We note initially that mere possession of a firearm as defined
in section 5848 is not per se unlawful-only when that possession is
conjoined with the failure of the possessor or another to comply
with one or more of the enumerated regulatory sections does a
violation of section 5851 occur. As the Tenth Circuit noted in
Waters v. United States, 328 F.2d 739 (10th Cir. 1964):
"Section 5848(1) describes the physical characteristics of
the firearms to which the provisions of section 5851 are
applicable. But, the enumerated sections in section 5851
describe the illegal attributes of firearms, the possession of
which is Condemned by section 5851. This section, i.e.,
section 5851, then provides that proof of possession of 'such
firearms * * * shall be deemed sufficient evidence to
authorize conviction * * *.' The phrase "such firearm' has
reference not only to a firearm defined in section 5848(p, but
also to a firearm which is illegally possessed for non-
compliance with one of the enumerated regulatory sections,
viz., a firearm 'which has at any time been made in violation
of section 5821,' or 'which has not been registered as re-
quired by section 5841.' It is therefore, incumbent upon the
Government to prove, not only possession of a firearm defined
in section 5848(1), but that the firearm is one illegally
possessed, for failure to comply with one of the enumerated
regulatory sections." 328 F.2d at 742 (Emphasis supplied).
We likewise reject the government's argument that the last
sentence of section 5851, note 1 supra, commonly referred to as a
presumption, relieves the government of proving that the firearm
was altered in the United States or, at a minimum, shifts the
burden to the defendant to show that the firearm was not made or
altered in the United States. The burden is upon the government to
prove each and every element of the crime beyond a reasonable
doubt. United States v. Collier, 381 F.2d 616 (6th Cir. 1967),
cert. denied, 390 U.S. 1043, 88 S.Ct. 1639, 20 L.Ed.2d 304 (1968);
Bryan v. United States, 373 F. 2d 403 (5th Cir. 1967). Moreover,
as the indictment is drawn, violation of section 5821 is an
"indispensable ingredient" of the crime defined and charged in
section 5851. United States v. Casson, 288 F.Supp. 86
(D.Del.1968). While it is true that the government is not required
to adduce positive evidence to support a negative averment in the
indictment, Rossi v. United States, 289 U.S. 89, 53 S.Ct. 532, 77
L.Ed. 1051 (1933), that is not a creature of the law with which we
are here concerned, notwithstanding the government's alchemistic
attempts at transmutation. What we here deal with is a positive
and affirmative fact [a making in the United States] absent which
section 5821 has no applicability and section 5851 is without
foundational support. The simple answer to the government's
contention is that if the firearm was not is "made" in the United
States, non-compliance with the making tax and declaration
provisions of section 5821 has no operative legal effect. The
presumption contained in section 5851 is unavailing to the
government in this regard, for as a rule of evidence it does not
come into play until possession is shown of a firearm
"made" in contravention of section 5821. See, e.g., Sipes v.
United States, 321 F.2d 174 (8th Cir. 1963), cert. denied, 375 U.S.
913, 84 S.Ct. 208, 11 L.Ed.2d 150. The presumption of section
5851, as other statutory presumptions, does no more than accord to
the government's evidence its natural probative force and effect.
United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658
(1965). The cases cited by the government in support of its
argument are inapposite to our consideration of the issue before
us, i.e., the validity of a conviction wherein an essential
affirmative act is neither proven nor admitted.
The fact of a "making in the United States" like any other
fact, is provable by direct or circumstantial evidence and the
permissible inferences drawn therefrom. This the government failed
to do and such omission is fatal to its case. To hold to the
contrary would require the defendant to prove a negative [not made
in the United States]-a burden the government has recoiled from and
one which we do not here readily impart to the defendant.
Ordinarily on this state of the facts we would remand to the
court below for a new trial. However, the record reveals it is
doubtful that the government can supply the defect in the evidence
upon a remand. That being the case and in view of the fact that
the defendant did not ask for a new trial in the court below,
Wright, Federal Practice and Procedure: Criminal section 470
(1969), the judgment of conviction is reversed and the case
remanded with directions to enter judgment of acquittal.
Reversed and remanded with directions.
FOOTNOTES
1. The statutes involved in appellant's conviction, which are here
set out in pertinent part, were part of the former National
Firearms Act (codified as 26 U.S. C. sections 5801 through 5862).
Subsequent to the filing of the indictment in the instant case, the
provisions of the National Firearms Act were amended in toto on
October 22, 1968, Pub.L. 90-618 and are now part of the new Gun
Control Act of 1968 (codified as 26 U.S.C. sections 5801 through
5872).
26 U.S.C. section 5848. Definitions
"For purposes of this chapter
(1) Firearm. The term 'firearm' means a shotgun having a
barrel or barrels of less than 18 inches in length, or a rifle
having a barrel or barrels of less than 16 inches in length, or any
weapon made from a rifle or shotgun (whether by alteration,
modification, or otherwise) if such weapon as modified has an
overall length of less than 26 inches. * * *
* * * *
(4) Shotgun.-The term 'shotgun' means a weapon designed or
redesigned, made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed shotgun shell to fire through a
smooth bore either a number of ball shot or a single projectile for
each single pull of the trigger."
26 U.S.C. section 5821. Rate, exceptions, etc.
"(a) Rate.-There shall be levied, collected, and paid upon the
making in the United States of any firearm (whether by manufacture,
putting together, alteration, any combination thereof, or
otherwise) a tax at the rated of $200 for each firearm so made.
* * * *
(c) By whom paid; when paid.-The tax imposed by subsection (a)
shall be paid by the person making the firearm. Such tax shall be
paid in advance of the making of the firearm.
* * * *
(e) Declaration.-It shall be unlawful for any person subject
to the tax imposed by subsection (a) to make a firearm unless,
prior to such making, he has declared in writing his intention to
make it firearm, has affixed the stamp described in subsection (d)
to the original of such declaration, and has filed such original
and a copy thereof. The declaration required by the preceding
sentence shall be filed at such place, and shall be in such form
and contain such information, as the Secretary or his delegate may
by regulations prescribe. The original of the declaration, with
the stamp affixed, shall be returned to the person making the
declaration. If the person making the declaration is an
individual, there shall be included as part of the declaration the
fingerprints and a photograph of such individual."
26 U.S.C. 5851. Possessing firearms illegally
"It shall be unlawful for any person to receive or possess any
firearms which has at any time been transferred in violation of
sections 5811, 5812(b), 5813, 5844, or 5846, or which has at any
time been made in violation of section 5821, or to possess any
firearm which has not been registered its required by section 5841.
Whenever on trial for a violation of this section the defendant is
shown to have or to have had possession of such firearm, possession
shall be deemed sufficient evidence to authorize conviction, unless
the defendant explains such possession to the satisfaction of the
jury."